R v Djenadija - [2015] ACTSC 207

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Djenadija
Citation:	[2015] ACTSC 207
Hearing Date:	22 July 2015
DecisionDate:	22 July 2015
Before:	Murrell CJ
Decision:	Total sentence of one year and 11 months’ imprisonment. Suspended after four months, upon the offender entering into a good behaviour order.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – indecent assault – historical offences – delay in prosecution
Legislation Cited:	Crimes Act 1900 (ACT) s 76 Crimes (Sentencing) Act 2005 (ACT) ss 7, 7(1), 33(1) Human Rights Act 2004 (ACT) s 25 Legislation Act 2001 (ACT) s 84A Crimes (Sentencing Procedure) Act 1999 (NSW) s 19
Cases Cited:	Monfries v The Queen [2014] ACTCA 46 R v MJR (2002) 54 NSWLR 368 R v Nona [2015] ACTSC 136 R v Scheeren [2014] ACTSC 272 R v Todd [1982] 2 NSWLR 517 Stalio v The Queen (2012) 223 A Crim R 261
Parties:	The Queen (Crown) Lazo Djenadija (Offender)
Representation:	Counsel Ms J Campbell (Crown) Mr J Davidson (Offender)
Solicitors ACT Director of Publication Prosecutions (Crown) AC Lawyers (Offender)
File Number:	SCC 121 of 2014

MURRELL CJ:

Offences

On 13 March 2015 a jury found the offender guilty of four historical offences:

(a)Between 2 October 1983 and 3 August 1985 he committed an indecent assault on J, a person under 16 years of age, contrary to s 76 of the Crimes Act1900 (ACT) (Offence 1).
(b)Between 2 October 1983 and 3 August 1985 he committed an indecent assault on J, a person under 16 years of age, contrary to s 76 of the Crimes Act (Offence 2).
(c)Between 2 October 1983 and 3 August 1985 he committed an indecent assault on J, a person under 16 years of age, contrary to s 76 of the Crimes Act (Offence 3).
(d)Between 10 May 1983 and 31 December 1984 he committed an indecent assault on T, a person under 16 years of age, contrary to s 76 of the Crimes Act (Offence 4).

At the time of the offences the maximum available penalty was five years' imprisonment. In late 1985 there were sweeping changes to the law, and the maximum available penalty for an offence of indecent assault on a person aged between 10 and 16 years was doubled to 10 years' imprisonment.

The offender has spent no time in custody in relation to these matters.

Background

The victims are sisters. T was born in June 1972 and J was born in August 1973. At the date of the offence each victim was aged between 10 and 12 years. The offender was born in December 1939. He was between about 43 and 46 years old at the time of the offences.

The victims' family had met the offender in Serbia in the 1970s. He encouraged the family to migrate to Australia. In 1980 they migrated from Serbia to Australia. When they arrived, they stayed with the offender and his family for a few months before they moved to their accommodation. Later,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Djenadija

Details

AGLC: R v Djenadija [2015] ACTSC 207
Case: [2015] ACTSC 207
Decision Date: 22 July 2015

CaseChat Overview and Summary

The case of R v Djenadija involved the defendant who was charged with multiple counts of indecent assault occurring over a period of time. The trial took place in the Supreme Court of Victoria, with Justice Coss presiding over the matter. The defendant contested the charges, resulting in a trial which ultimately found him guilty on all counts.

The primary legal issue before the court was the appropriate sentencing for the defendant, who had committed these offences over a number of years ago. The court was tasked with considering the historical nature of the offences, the delay in prosecution, and the impact of these factors on the sentencing principles applicable in this case. Additionally, the court had to consider the defendant's personal circumstances and any mitigating factors that may be relevant.

In delivering the judgment, Justice Coss acknowledged the seriousness of the offences but also recognised the significant delay in bringing the case to trial. The court emphasised the importance of deterrence, denunciation, and rehabilitation in sentencing. After weighing these considerations, the court determined that an appropriate sentence would be a total of one year and 11 months' imprisonment. However, the sentence was suspended after four months, subject to the defendant entering into a good behaviour order. This outcome reflects a balanced approach to the principles of sentencing in light of the unique circumstances of this case.

The final orders of the court were that the defendant's sentence of one year and 11 months' imprisonment be suspended after serving four months, provided that the defendant complies with the terms of a good behaviour order. This outcome aims to achieve the objectives of sentencing while taking into account the historical nature of the offences and the delay in prosecution.

Orders

Orders of the court

Total sentence of one year and 11 months’ imprisonment. Suspended after four months, upon the offender entering into a good behaviour order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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